Age concern

Firms across the country might think any issues relating to partner retirement age have been ironed out, but one case going through the courts could change all that.

The Court of Appeal was convened last week to hear the snowballing case that is Seldon v Clarkson Wright & Jakes,  a trial that looks specifically at whether it is legal to force a partner to retire when he or she reaches the age of 65.

When Clarkson Wright & Jakes (CWJ) partner Leslie Seldon turned 65 his firm decided to enact its partnership agreement and force him to retire. Dissatisfied, Seldon instructed Jo Davis, head of employment at BP Collins, to sue the firm because, he argued, the firm could not justify the retirement and therefore acted discriminately.

At the original Employment Tribunal, CWJ, represented by Blackstone Chambers’ Thomas Croxford, put forward six key points as grounds for reasonable justification for Seldon’s retirement. Finding in the firm’s favour, the tribunal upheld three points of justification, suggesting that in legal terms at least they would be part of public policy.

This included the argument that the policy would allow younger associates to move through the ranks. It upheld the notion that older partners do not perform on the same level as their younger counterparts.

At the Employment Appeal Tribunal (EAT), the Equalities and Human Rights Commission (EHRC) got involved as an intervener, instructing Cloisters Chambers barrister Declan O’Dempsey to support Seldon’s legal team.

The EAT ruled in favour of the firm on all points save one, namely that the assumption that performance dropped off at 65 was not supported by any evidence and involved stereotyping. The case was referred back to the same tribunal to consider whether the need to achieve the other legitimate aims was sufficient to justify the rule.

Originally when the EHRC got involved it acted as an intervener. After the EAT ruling it decided to back Seldon’s case in the Court of Appeal and instructed Cloisters’ star employment silk Robin Allen QC.

The case was scheduled to be heard last July, but a number of factors pushed the hearing back. When the EHRC got involved the Government decided it should defend its stance on retirement age and instructed heavyweight Dinah Rose QC of Blackstone Chambers to represent it as an intervener.

Allen also acted for Age Concern in last year’s Heyday case in which he challenged the Government’s interpretation of the Europe-wide Equal Treatment Framework Directive. In that case he also came up against Rose, who had been instructed by the Government.

In Heyday, Allen argued that just because the discrimination could be justified it did not make it legal. It was on these grounds that Allen appealed the Seldon case and the The appeal court adjourned the Seldon hearing pending the outcome of the Heyday case. The Government won the Heyday case. 

But last week Allen and Rose were back in court for round two and this time Allen argued that if discrimination can be justified that justification should not be based on private business needs but on social policy.

A source close to the case commented: “This has just snowballed. It’s the first case to hit the Court of Appeal with a focus on justification and it’s very important for all firms to know what they need to do about the retirement age of partners.

“The fact that both the commission and the Government are involved shows just how important it is.”

Lord Justices Laws, Waller and Hughes are expected to give their judgment before the summer break. If it goes against CWJ a lot of firms could be spending their summer rewriting partnership deeds.